A federal employee maintains (among other claims) that her agency held her back from a promotion because of her support of a Title VII class action in the workplace. Although a jury returned a verdict against her, the Fourth Circuit improbably reverses the judgment for the employer and sends it back for a new trial.
Buckley v. Mukasey, No. 07-1195 (4th Cir. Aug. 20, 2008): To resolve a long-lived Title VII race discrimination class action (the Segar case), the Drug Enforcement Administration (DEA) consented to several reforms of its promotion process. The plaintiff in this case was a senior inspector for the agency who (at the time) supervised the office charged with handling General Accounting Office (GAO) reviews. In 2001, the GAO sought to conduct a study of the DEAs hiring, promotion and discipline practices at the behest of Congresswoman Eddie Bernice Johnson. While DEA staff William Brown (then acting Chief Inspector) and Cynthia Ryan (Chief Counsel) resisted cooperation with the GAO, citing the continuing lawsuit, the plaintiff voiced support for the investigation in e-mails and (apparently without leave) set up a high-level meeting with representatives of DEA, GAO and the Segar class action. When plaintiff Buckley later sought a promotion, her handling of the GAO requests was cited as the reason for turning down her application.
The plaintiff pursued a number of different race discrimination and retaliation theories. On one claim, retaliatory failure to promote, the district court granted judgment as a matter of law at the close of the evidence. She lost before a jury on the balance of her case.
But on appeal, the Fourth Circuit reversed the judgment as a matter of law and remanded for a new trial, on the ground that the plaintiff was barred from introducing background evidence about the Segar litigation. The district court adjudged the Segar evidence (about the history of the case and the consent decree) as mere propensity evidence and excluded it under Federal Rules of Evidence 401-403 and 404(a). The Fourth Circuit, though, grasped at once the error in the trial judgeâ€™s reasoning:
â€œApparently, the district court misunderstood the purpose for which Buckley sought the admission of the Segar litigation evidence. Buckley did not, as the court believed, seek to use such evidence to establish either a general propensity to discriminate against African-American employees within the DEA, or a more specific racially discriminatory animus on the part of the decision makers in her case based on past discriminatory acts committed by other DEA decision makers. Rather, Buckley intended to utilize the Segar litigation evidence to demonstrate retaliatory animus, as she was required to do to prevail on her retaliation claims. Specifically, Buckley sought to show â€˜that the pendency of Segar and the long history of its burden on DEA weighed heavily on the minds of the principal decision-makers, and that, ultimately, those decision-makers failed to promote Buckley because of her involvement in the litigation.â€™ Br. of Appellant 19.â€
The panel concluded that the exclusion of the background Segar litigation evidence affected her substantial rights and mandated retrial of the retaliation and discrimination claims. The court also reversed, on the same reasoning, the judgment as a matter of law on the retaliation claim.
Finally, the court directed reconsideration of the district courtâ€™s denial of an adverse-inference instruction owing to the governmentâ€™s negligent destruction of electronic documents during the litigation. The panel held that the district court applied too strict a standard against the plaintiff to excuse the agencyâ€™s failure to preserve the documents: â€œIn its analysis of Buckleyâ€™s request for an adverse inference instruction, the district court appears to have committed an error of law by equoting the intentional conduct necessary for such an instruction with bad faith, thereby deeming non-bad faith conduct to be negligent conduct. The court did not acknowledge that the DEAâ€™s document destruction, though not conducted in bad faith, could yet be â€˜intentional,â€™ â€˜willful,â€™ or â€˜deliberate.'â€